After helping blow a hole in Bloomberg's taxi plan, de Blasio suggests repairs

Public Advocate Bill de Blasio recently embraced a taxi lawsuit that now stands to gash a $1 billion hole in New York City's budget. Today, he held a press conference seeking to patch that budgetary hole up.

The lawsuit in question argues that the mayor’s wide-reaching “borough taxi” plan, for which he sought Albany approval, is illegal because New York City's taxi fleet is a resoundingly local issue that necessitates local City Council approval.

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The Albany law in question allows the city to create a new fleet of 18,000 green “borough taxis” to service the outer boroughs, where yellow taxi service is scarce, and also to sell 2,000 regular yellow medallions, which the city estimates would garner $1 billion.

Medallion owners believe the plan will undermine the price of their million-dollar assets, and have since filed multiple suits seeking to overturn the law, arguing, in part, that the state and the mayor have usurped powers that traditionally belong to the City Council, an argument echoed by de Blasio in a legal brief.

On Thursday, just a day after the city's budget director warned that the de Blasio-backed suit threatened to drastically undermine the city's budget, de Blasio held a press conference seeking to patch things up, urging the Bloomberg administration to seek City Council approval for the medallion portion of the plan (but not the "borough taxi" part, which is believed to be more controversial among medallion owners) and fill that potentially gaping budgetary hole.

But the city's budget director yesterday indicated the administration was not so inclined. That may be because the legal argument upon which the de Blasio challenge is based is vulnerable to a challenge.

“I can see a 15 to 20 percent chance that the Court of Appeals would take that seriously,” said N.Y.U. Law professor Roderick Hills, of the argument advanted by de Blasio and medallion owners that the borough taxi plan violates the law.

Upon further consideration, Hills said, “maybe a 30 percent chance.”

Hills and SUNY New Paltz political science professor Gerald Benjamin agree that, while the mayor’s action may set bad precedent from the standpoint of city autonomy, higher courts are nevertheless likely to rule in the city’s favor.

The Bloomberg administration argues, in a legal brief, that the law does not violate the so-called "home rule" provision of the state constitution because it "is intended both to improve access to safe and reliable mass transportation for residents of New York State traveling to, from and within the City of New York, and to improve access to taxicab and livery transportation for disabled passengers," and that those are interests of substantial concern to the state.

“The courts have tended to favor the state over localities in interpreting home rule," said Benjamin.

Hills said, “It’s unbelievably rare for the Court of Appeals to strike down a state law," based on the argument that it's not advancing a "substantial state concern.”

The precedent on such matters was set in a 1929 case about tenement regulations known as Adler v. Deegan.

That year, the state passed the Multiple Dwelling Act, which, in effect, applied only to New York City and required that city housing comply with what Cardozo described as "certain minimum standards for fire-prevention, light, air and cleanliness.” Among other things, the law outlawed yard toilets and ladder-style fire escapes.

Tenement House Commissioner and Major Deegan Expressway namesake William Deegan's efforts to enforce the law were stymied by a tenement landlord named Ernest Adler, who argued that the law was improperly passed because it violated the home rule provision of the constitution.

In a concurring opinion that ended up setting precedent, Justice Benjamin Cardozo argued that, if an issue, like slum clearance, is “in substantial degree a matter of State concern, the Legislature may act.”

His opinion has since been construed broadly, such that any state legislation that impacts New York City, but also some non-city residents, is justified on the basis that it's a substantial state concern.

“Therefore the state can regulate the price of theater tickets, and the court has so held,” said Hills.

And therefore, he said, the taxi law will probably be upheld, "because a huge percentage of taxi rides come from LaGuardia and Kennedy and they’re taxi rides by non-residents.”

One aspect of the plaintiff’s argument might possibly fair better in court: that the mayor usurped the power of the City Council (rather than the state usurping the city's).

“I think that’s the only argument that has a hope of a prayer of a chance of winning,” said Hills.

Hills and Benjamin agree on another thing too: That Mayor Michael Bloomberg's pursuit of state legislative action, instead of city, may have been the short-term pragmatic thing to do, but it comes with longer-term costs.

“You’d think the mayor would be a great guardian of local power because he’s the mayor,” said Benjamin.

“When people are seeking an immediate outcome, they sometimes sacrifice the institutional interest they ought to be guarding,” said Benjamin. “And that appears to be the case here.”

"There’s clearly something a little odd about having Cuomo and a bunch of, whatever, Rockland County, Dutchess County, Cortland County people sit in a conclave and decide how New York City people should be governed," said Hills.

But, Hills also called the medallion system a "perversity," and said, "to the extent that [Taxi Commissioner] Yassky and Bloomberg are trying to break the back of that system by going to Albany, I sympathize with them."

UPDATE: Julie Wood, a spokeswoman for the mayor, sent over the following statement: "Mr. De Blasio woke up this morning and realized that his special interest advocacy on behalf of millionaire taxi fleet owners could cost the city a billion dollars. Too bad his half-hearted pleas for the City Council to get himself out of this jam won’t work legally. Instead of playing politics, he should have supported taxi service for all New Yorkers from the start.”